405 F.

3d 1260

UNITED STATES of America, Plaintiff-Appellee,

v.
Jose Rolando GARCIA, Leonardo Antonio Enriquez-Valdes,
a.k.a. Leo, Alberto Artires, Enicio Mercado, DefendantsAppellants.
No. 03-10350.

United States Court of Appeals, Eleventh Circuit.

April 13, 2005.

COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL

OMITTED COPYRIGHT MATERIAL OMITTED Gennaro Cariglio, Jr.
(Court-Appointed), Law Office of Gennaro Cariglio, Jr., Sheryl Joyce
Lowenthal (Court-Appointed), Mark Graham Hanson, (Court-Appointed),
Miami, FL, Richard L. Rosenbaum (Court-Appointed), Law Offices of
Richard L. Rosenbaum, Ft. Lauderdale, FL, for Defendants-Appellants.
Jeanne Marie Mullenhoff, Anne R. Schultz, U.S. Atty., Jonathan D.
Colan, Gerald E. Greenberg, Miami, FL, for Plaintiff-Appellee.
Appeals from the United States District Court for the Southern District of
Florida.
Before EDMONDSON, Chief Judge, WILSON, Circuit Judge, and
RESTANI * , Judge.
PER CURIAM:

We withdraw our previous opinion issued on March 22, 2005, and replace it
with this opinion.

This appeal arises out of the convictions and sentences of appellants Jose
Rolando Garcia, Leonardo Antonio Enriquez-Valdes, Alberto Artires, and
Enicio Mercado. After a twelve day trial, a jury found these four appellants
guilty of conspiracy to manufacture and possess with intent to distribute 100 or
more marijuana plants in violation of 21 U.S.C. 846. Garcia, Valdes and

Artires were also convicted for maintaining a place for the purpose of
manufacturing marijuana in violation of 21 U.S.C. 856(a)(1). Additionally,
the jury found Valdes and Artires guilty of manufacturing marijuana in
violation of 21 U.S.C. 841(a)(1).1
3

On appeal, the appellants contend that the district court made a variety of
errors, including: (1) the denial of appellants' motions seeking judgment of
acquittal on insufficiency of the evidence grounds; (2) the admission of
improper and irrelevant evidence; (3) the denial of joint motions for mistrial or,
in the alternative, severance based on the alleged improper and prejudicial
closing argument of counsel for Valdes; (4) the rejection of Garcia's proposed
jury instruction for accessory after the fact; (5) at sentencing, the denial of
Valdes's motion for a reduction in sentence pursuant to U.S.S.G. 5C1.2, the
"safety-valve" provision; and (6) at sentencing, the court's finding that Alberto
Artires was responsible for over 300 marijuana plants when the jury
specifically found that he was not involved in more than 100 marijuana plants.2

As to the convictions and sentences of Garcia and Mercado, we find no error

and affirm. As to Valdes and Alberto Artires, we affirm their convictions, but
vacate the judgments and remand for re-sentencing.

I. FACTUAL BACKGROUND
5

This case involves a network of marijuana grow houses, both active and
dismantled, located throughout South Florida. During the course of the
government investigation, which spanned over a period of one and one-half
years, agents searched and investigated at least twelve residences located in and
near Miami.3

In May of 2000, the FBI received a confidential tip that Yovanni Espinosa was
operating a grow house in an efficiency apartment behind a house located at
15604 N.W. 37th Avenue in Opa Locka, Florida. Upon executing a search
warrant at this location on June 19, 2000, agents discovered a fully functioning
marijuana grow house with 104 marijuana plants plus additional decomposing
plants. The subject apartment had a high-voltage lighting system, a selfcontained irrigation and fertilization system, Mylar-covered walls, and large air
conditioning units. The agents also discovered miscellaneous photographs at
the residence. One photograph was a picture of a group of men, including codefendants Alberto Artires, Felipe Suarez, Enicio Mercado, Javier Rey, and
Pedro Pablo Aldao. Another picture depicted a house numbered "8504" and
what appeared to be the same vehicle as a vehicle located at the house being
searched.

On June 20, 2000, the agents searched Espinosa's property located at 2968
Northwest 87th Terrace in Miami, Florida. At this address, the agents met
Aldao and discovered 48 mature marijuana plants that had been harvested and
were hanging to dry. Additionally, agents found 47 immature marijuana plants,
marijuana seedlings in starter trays, two live mother plants, and equipment used
to hydroponically grow marijuana.

On June 21, 2000, at Espinosa's 15604 N.W. 37th Avenue residence, the agents
seized a photograph containing a sports utility vehicle, which they later
determined was registered to co-defendant Felipe Suarez. Upon searching
Suarez's residence located at 8504 Sheraton Drive, Miramar, Florida4 that same
day, agents found decomposing marijuana material, paraphernalia for growing
marijuana, and a bedroom that appeared to have been equipped to grow
marijuana, but had been dismantled.

Having received confidential information while at 8504 Sheraton Drive, the

agents immediately searched 8545 Long Acre Drive in Miramar, Florida. After
Mario Artires, the brother of Alberto Artires, consented to the search, the
agents discovered 90 marijuana plants and marijuana cultivation paraphernalia
in a bedroom that had been converted into a grow lab.

10

On June 23, 2000, in response to information from a confidential source, the

agents searched a home at 9290 S.W. 149th Street, Miami, Florida, the home of
Reynaldo Artires, brother of Alberto and Mario Artires. There, agents found
marijuana cultivation materials and a dismantled grow house in Reynaldo's
garage, but did not find any marijuana plants. After noticing that Reynaldo's
driver's license listed 1165 W. 33rd Street, Hialeah, Florida, as his address
instead of the home being searched, the agents immediately continued to that
address. At 1165 W. 33rd Street, the agents met Garcia, who told them that he
was renting the house from Reynaldo. The agents did not find anything in the
residence, but a police dog alerted them to potential contraband in an efficiency
apartment adjoining the house and a white van parked in the driveway. In the
apartment, the agents discovered marijuana cultivation materials, marijuana
leaves, and a dismantled grow house. Notably, two fingerprints on the Mylar
film covering the walls in the apartment matched the fingerprints of Garcia.
Additionally, the white van, which was registered to Garcia, contained a plastic
starter tray, five-gallon buckets, PVC piping, and other materials that the agents
had observed in other grow houses during the investigation of this conspiracy.

11

On July 5, 2000, agents searched 3092 N.W. 15th Street, Miami, Florida.
Espinosa had previously lived at this address until it was purchased by Suarez.
Upon the arrival of the agents, the current tenant, Javier Rey, an indicted co-

conspirator who pled guilty prior to trial, consented to the search. At 3092
N.W. 15th Street, the agents discovered a dismantled grow house and marijuana
cultivation materials. On July 10, 2000, agents searched a home located at
11601 S.W. 9th Court in Pembroke Pines, Florida. There, the agents met Julio
Artires, who rented the home. The following day, agents seized items such as
an air handler, fluorescent lights, a cooler, and a digital scale from the
residence.
12

Approximately nine months later, on April 6, 2001, the agents searched 3129
N.W. 13th Avenue, Miami, Florida after receiving a tip from an industrial gas
vendor. There, the agents found a plastic tray filled with 17 bags of processed
marijuana, unused rock wool, PVC piping, ceramic grow rocks, and a scale. In
one of the bathrooms of the residence, holes had been drilled into the ceiling
and the window was sealed with Mylar film and duct tape. That day agents also
searched 1285-87 N.W. 28th Street, Miami, Florida, where they again found
marijuana cultivation paraphernalia.

13

Five months later, on September 26, 2001, the agents searched 8600 N.W. 30th
Road, Miami, Florida. At this residence, the agents met Valdes. In a small
apartment at the rear of the residence, the agents found a fully-functioning
grow house with 117 marijuana plants. Approximately three surveillance
cameras were mounted on the roof of the small apartment. The wires for this
surveillance system ran from the apartment into the main residence. The agents
recovered fingerprints that matched Mercado's fingerprints from the Mylar film
found in the apartment. According to the electricity records, Valdes was the
subscriber for both the apartment and the main residence.

14

On October 17 and 18, 2001, agents searched 15601 N.W. 39th Court, Opa
Locka, Florida, an address for which Alberto Artires was listed as the
subscriber on the electricity records. Alberto Artires consented to the search.
There, agents found marijuana cultivation paraphernalia, several nursery trays
with marijuana leaves in them, and small amounts of marijuana residue.

15

In addition to the physical evidence and testimony of the agents, government

witnesses including co-conspirators Manual Horta, Espinosa, Aldao, and
Hernando Hernandez testified against appellants at trial. The government's key
witness was Espinosa, who pled guilty prior to trial. He testified that within a
year of moving to Florida from Cuba, he began assisting with marijuana
cultivation. Initially, Espinosa and others, including indicted co-conspirators
Alberto, Mario, and Reynaldo Artires, would assist Hernandez, an unindicted
co-conspirator, maintain grow houses and clip marijuana plants, including 33
plants grown at 1600 N.W. 28th Avenue in Miami, Florida.

16

Espinosa also testified that since moving to Florida, he has lived in four houses
with Suarez. With the help of Mercado and Alberto, Mario, and Reynaldo
Artires, Suarez and Espinosa grew crops of approximately 40 to 44 marijuana
plants at one house. At another house, Suarez, Mercado, and Espinosa grew
three crops of 30 marijuana plants, which they dried and clipped with the help
of Alberto, Mario, and Reynaldo Artires. Espinosa testified that he, Suarez,
Mercado, and Alberto and Julio Artires also grew, dried, and clipped two crops
of 50-55 marijuana plants at a grow house in Carol City, Florida.

17

Espinosa testified that he and Aldao, who also pled guilty prior to trial, grew
three crops of approximately 48 marijuana plants at 2968 N.W. 87th Terrace in
Miami. While Espinosa held the title to the residence, Aldao lived there and
maintained the plants with the help of Espinosa, Mercado, Alberto Artires, and
Suarez. Espinosa also owned 15604 N.W. 37th Avenue, where he harvested
one crop of 40 marijuana plants with the help of Alberto Artires, Mercado,
Suarez, and Rey. Espinosa was in the process of growing a second crop of 40
plants plus cultivating seedlings when he was arrested. Espinosa also testified
that he helped Alberto Artires cultivate a crop of 48 marijuana plants at
Artires's home near the airport in Opa Locka.

18

Espinosa testified that he and Mercado set up a grow house for Valdes in an
efficiency apartment adjoining a rear bedroom of Valdes's house located at
8600 N.W. 30th Road while Valdes watched. With seedlings provided by
Aldao, Valdes proceeded to grow two crops of marijuana plants, 53 and 50
plants respectively. These crops were clipped by Espinosa, Alberto Artires,
Mercado, Valdes, Suarez, and others.

19

Aldao testified that he, like Espinosa, emigrated to Florida from Cuba. After
working in various jobs, Aldao started cultivating marijuana crops with
Mercado and Espinosa. Mercado, Espinosa, and Aldao grew a crop of over 90
plants at Aldao's house. At the time of Aldao's arrest, he was drying his second
crop of 96 marijuana plants at 2968 N.W. 87th Terrace in Miami.

20

Hernandez, an unindicted co-conspirator, testified that he too moved to Florida

from Cuba. After being introduced to Suarez, Hernandez and Suarez set up
many grow houses together. Each grow house had its own separate caretaker.
Hernandez testified that Alberto Artires may have assisted Suarez and him with
clipping marijuana plants, and that Alberto Artires and his brothers provided
him with marijuana to sell.

21

FBI Intelligence Research Specialist Maureen Hollinger testified that hundreds

of calls had been made between the telephone numbers of Garcia, Alberto
Artires, Mercado, and other co-conspirators. The analyst did not testify that any
calls had been made to or from Valdes. She also testified as to the ownership of
the various residences investigated and searched by the agents. She testified
that, from January 1997 through October 2001 (the span of the conspiracy) the
following individuals were the title owners of the following properties:
Espinosa owned 15604 N.W. 37th Avenue, Opa Locka, and 2968 N.W. 87th
Terrace, Miami; Suarez owned 8504 Sheraton Drive, Miramar, and 3092 N.W.
15th Street, Miami; Mario Artires owned 8545 Long Acre Drive, Miramar; and
Albert Artires owned 15601 N.W. 39th Court, Opa Locka.
II. PROCEDURAL BACKGROUND
22

On August 31, 2001, a federal grand jury in the Southern District of Florida,
Miami Division, returned a sealed indictment charging nine defendants,
including Garcia, with various marijuana manufacturing and distribution
offenses. On December 14, 2001, the grand jury returned a superseding
indictment adding Alberto Artires, Mercado, and Valdes as defendants. Count I
charged all the defendants but Espinosa with conspiring to manufacture and
possess with intent to distribute 100 or more marijuana plants, in violation of 21
U.S.C. 841(a)(1) and 846(b)(1)(B). The superseding indictment alleged that
the conspiracy existed from January 1997 through October 18, 2001.

23

In addition to the conspiracy charge, Garcia and Artires were charged in Counts
10 and 20, respectively, with knowingly and intentionally manufacturing
marijuana in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(D) and 18
U.S.C. 2. Valdes and Mercado were similarly charged in Count 18, which
specified that they manufactured 100 or more marijuana plants. Garcia was
charged in Count 11 with knowingly and intentionally maintaining a residence
located at 1165 W. 33rd Street, Hialeah, Florida for the purpose of
manufacturing marijuana in violation of 21 U.S.C. 856(a)(1) and 18 U.S.C.
2. Valdes and Mercado were charged in Count 19 with knowingly and
intentionally maintaining a residence located at 8600 N.W. 30th Road, Miami,
Florida for the purpose of manufacturing marijuana in violation of 21 U.S.C.
856(a)(1) and 18 U.S.C. 2. Artires was similarly charged in Count 21 with
knowingly and intentionally maintaining a residence located at 15601 N.W.
39th Court, Opa Locka, Florida for the purpose of manufacturing marijuana in
violation of 21 U.S.C. 856(a)(1) and 18 U.S.C. 2.

24

Beginning September 23, 2002, appellants and two other co-defendants were
tried together before a jury.5 None of the appellants testified at trial. On
October 11, 2002, the jury began its deliberations. Ultimately, the jury found

appellants guilty as follows: Garcia guilty of conspiracy (Count 1) and

maintaining 1165 W. 33rd Street, Hialeah, Florida, for the purpose of
manufacturing marijuana (Count 11); Valdes guilty of conspiracy (Count 1),
manufacturing 100 or more marijuana plants (Count 18), and maintaining 8600
N.W. 30th Road, Miami, Florida, for the purpose of manufacturing marijuana
(Count 19); Artires guilty of conspiracy (Count 1), maintaining marijuana
(Count 20), and maintaining 15601 N.W. 39th Court, Opa Locka, Florida, for
the purpose of manufacturing marijuana (Count 21); and Mercado guilty of
conspiracy (Count 1).6 Appellants were sentenced on February 7, 2003, and are
currently incarcerated.
III. DISCUSSION
A. Sufficiency of the Evidence
25

Appellants contend that, because the evidence was insufficient for a reasonable
jury to convict them, the district court erred in denying their motions for
judgment of acquittal filed pursuant to Rule 29 of the Federal Rules of Criminal
Procedure. We review the sufficiency of the evidence de novo, viewing the
evidence in the light most favorable to the government. United States v.
Starrett, 55 F.3d 1525, 1541 (11th Cir.1995). We must affirm the appellants'
convictions unless, under no reasonable construction of the evidence, could the
jury have found the appellants guilty beyond a reasonable doubt. United States
v. Camargo-Vergara, 57 F.3d 993, 997 (11th Cir.1995). All reasonable
inferences and credibility choices must be made in favor of the government and
the jury's verdict. United States v. Massey, 89 F.3d 1433, 1438 (11th Cir.1996).
1. Challenges to Conspiracy Count

26

27

After a twelve day trial, the jury found the appellants guilty of participating in a
conspiracy to manufacture and possess with the intent to distribute marijuana, in
violation of 21 U.S.C. 846. Appellants argue that there was insufficient
evidence of a conspiracy and no evidence that each of the defendants intended
to participate in a conspiracy. "To support a conspiracy conviction, the
government must prove (1) an agreement between the defendant and one or
more persons, (2) the object of which is to do either an unlawful act or a lawful
act by unlawful means." United States v. Smith, 289 F.3d 696, 706 (11th
Cir.2002) (citation and internal quotations omitted).
To prove participation in a conspiracy, the government must have proven
beyond a reasonable doubt, even if only by circumstantial evidence, that a

conspiracy existed and that the defendant knowingly and voluntarily joined the
conspiracy. United States v. Charles, 313 F.3d 1278, 1284 (11th Cir.2002),
cert. denied, 539 U.S. 933, 123 S.Ct. 2588, 156 L.Ed.2d 615 (2003). Thus, at
issue is whether there was sufficient evidence for the jury to find that the
appellants knowingly volunteered to join the conspiracy to sustain their
conviction as to Count 1.7 To satisfy this burden, the government need not
prove that the defendants knew all of the detail or participated in every aspect
of the conspiracy. Id. at 1284. Rather, the government must only prove that the
defendants "knew the essential nature of the conspiracy." Id.
28

Whether the appellants knowingly volunteered to join the conspiracy may be

proven by "direct or circumstantial evidence, including inferences from the
conduct of the alleged participants or from circumstantial evidence of a
scheme." United States v. Rodriguez, 765 F.2d 1546, 1551 (11th Cir.1985)
(citation and internal quotations omitted). "Indeed, because the crime of
conspiracy is predominantly mental in composition, it is frequently necessary to
resort to circumstantial evidence to prove its elements." United States v.
Pineiro, 389 F.3d 1359, 1369 (11th Cir.2004) (citation and internal quotations
omitted).

29

Appellants challenge the trial testimony of co-conspirators Espinosa and Aldao

as incredible, untrustworthy, and uncorroborated. Nevertheless, uncorroborated
testimony of an accomplice may be enough to support a conviction if the
testimony is not on its face incredible or otherwise insubstantial. United States
v. Butler, 792 F.2d 1528, 1536 (11th Cir.1986). Because credibility
determinations are the exclusive province of the fact finder, we cannot
disregard the jury's credibility determination unless it is "unbelievable on its
face." United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir.1985).

30

In addition to the testimony of Espinosa and Aldao, the government offered the
testimony of other witnesses, including fact witnesses and government agents.
The government also offered telephone records and electrical company
subscriber records. This evidence coupled with an abundance of physical
evidence, including photographs of marijuana plants and cultivation
paraphernalia, clearly indicate a marijuana cultivation network. Based on the
evidence offered at trial, a reasonable jury easily could have found a conspiracy
to manufacture marijuana. "Once the existence of a conspiracy is established,
only slight evidence is necessary to connect a particular defendant to the
conspiracy." United States v. Clavis, 956 F.2d 1079, 1085 (11th Cir.1992).
Because there was sufficient evidence connecting Garcia, Valdes, Alberto
Artires, and Mercado to the conspiracy, their convictions as to Count 1 should
be sustained.

2. Challenges to Substantive Counts

31

a. Challenge to Conviction for Knowingly Manufacturing Marijuana with Intent

to Distribute

32

Valdes argues that there was insufficient evidence for a reasonable jury to
convict him of knowingly manufacturing marijuana. Section 841(a)(1) of Title
21 requires direct or circumstantial proof of the individual's knowledge and
intent. United States v. Poole, 878 F.2d 1389, 1391 (11th Cir.1989).

33

Valdes resided in a house located at 8600 N.W. 30th Road, Miami. Since
October of 1999, he was the individual listed as the subscriber on the electrical
records for both the main residence and an efficiency apartment adjacent to the
main residence. Upon searching the efficiency apartment, agents discovered
117 marijuana plants and a fully-functioning grow house. Accordingly, there
was sufficient evidence for a reasonable jury to find that Valdes knowingly
manufactured 117 marijuana plants with the intent to distribute the marijuana
narcotic.8

b. Challenges to Convictions for Knowingly Maintaining a Place for the Purpose of

Manufacturing Marijuana
34

To convict under 21 U.S.C. 856(a)(1), the government must prove "that the
defendant: (1) knowingly, (2) operated or maintained a place, (3) for the
purpose of manufacturing, distributing, or using any controlled substance."
Pineiro, 389 F.3d at 1367 (citation and internal quotations omitted). "Thus, the
offense requires two mental elements, knowledge and purpose." Id. Garcia and
Valdes both challenge the sufficiency of the evidence for their convictions
under 856(a)(1).

35

Garcia rented the home located at 1165 West 53rd Street, Hialeah, Florida,
from Reynaldo Artires. Adjoining the home was an efficiency apartment that
agents later discovered had been used as a grow house. After a trained police
canine alerted the agents to the scent of controlled substances in the apartment
and a white van located on the property, the agents obtained a search warrant.
Upon searching the efficiency apartment, the agents discovered marijuana
cultivation paraphernalia, including irrigation hoses, five-gallon buckets, sealed
windows, patches of Mylar film on the walls, and marijuana residue.
Nevertheless, Garcia challenges this conviction by asserting that the
government did not offer evidence that placed Garcia physically in the
efficiency apartment.

36

Two finger prints found on the patches of Mylar film in the apartment matched
Garcia's fingerprints. Moreover, in the white van, which was registered to
Garcia, the agents found more marijuana cultivation materials. Additionally,
Espinosa testified that Garcia had assisted in clipping marijuana plants during
the conspiracy. FBI Specialist Hollinger also testified that numerous phone
calls were made between the phone numbers of Garcia, Mario Artires,
Reynaldo Artires, and another unindicted co-conspirator who operated a grow
house in Carroll City, Florida. From the totality of this evidence, it was
reasonable for the jury to find that Garcia knowingly maintained the efficiency
apartment as a place for growing marijuana.

37

At trial, the government offered evidence that agents discovered 117 marijuana
plants and a fully-functioning grow house in an efficiency apartment adjacent to
Valdes's home located at 8600 N.W. 30th Road in Miami. Although Valdes
contends that the government offered no evidence placing him physically in the
efficiency apartment, he was listed as the subscriber on the electricity records
for both the main residence and the efficiency apartment. Moreover, the wires
from the surveillance system monitoring the apartment ran into the main
residence.

38

Therefore, considering the evidence, a reasonable jury could also find Valdes
guilty of knowingly maintaining a place for the purpose of manufacturing
marijuana. Accordingly, Garcia's and Valdes's challenges to their convictions
for knowingly maintaining a place for the purpose of manufacturing marijuana
fail.9
B. Evidentiary Issues

39

Valdes contends that the district court erred in admitting evidence that did not
pertain to him, even though the evidence did support the charges brought
against his co-defendants. The government asserts that Valdes's challenge of the
evidentiary rulings is actually a thinly-disguised severance argument. At no
point during the evidentiary objections did Valdes move the district court for a
severance, and, therefore, the issue of whether Valdes should have had a
separate trial because of this evidence is not before us.

40

Valdes specifically argues that the evidence should have been excluded as
irrelevant and highly prejudicial. While Valdes claims that he was prejudiced
by the admission of evidence of his co-defendants' unlawful acts, we have long
recognized that a defendant does not suffer compelling prejudice simply
because much of the evidence admitted at trial is applicable only to co-

defendants. United States v. Cassano, 132 F.3d 646, 651 (11th Cir.1998). The
general rule, particularly applicable in conspiracy cases, is that defendants
indicted together should be tried together. Id.
41

Although the photographs, agency paperwork, and records to which Valdes

objected may not have been relevant to the charges brought against him, this
evidence was clearly relevant to the charges brought against his co-defendants.
Further, the district court explicitly instructed the jury that each charge and the
evidence pertaining to that charge had to be considered separately. The
acquittal of Julio Artires on all charges and of Garcia and Mercado on certain
charges indicates that the jury followed the court's instructions and made
individualized determinations of guilt. Accordingly, we hold that the district
court did not abuse its discretion in admitting this evidence over Valdes's
objection.

42

C. Mistrial or, in the Alternative, Severance

43

Garcia argues that the district court erred in denying the appellants' motion for
mistrial or, alternatively, severance due to prejudicial remarks made by counsel
for Valdes during his closing argument.10 We review motions for mistrial and
motions for severance for abuse of discretion. Starrett, 55 F.3d at 1553. Garcia
contends that he and his co-defendants were prejudiced by a remark made by
counsel for Valdes in his closing argument. In his closing argument, counsel for
Valdes stated: "The government was right. This [telephone] chart tells you all
you need to know ... It tells you everything you need to know about this
conspiracy." Trial Tr. at p. 1431. Notably, the district court instructed the jury
before closing arguments began that the arguments of counsel were not
evidence, and later reminded the jury that such comments were not evidence.

44

For an alleged improper closing argument to justify a new trial, the argument
"must be both improper and prejudicial to a substantial right of the defendant."
Rodriguez, 765 F.2d at 1559. When a curative instruction is given, this court
reverses only if the evidence "is so highly prejudicial as to be incurable by the
trial court's admonition." United States v. Perez, 30 F.3d 1407, 1410 (11th
Cir.1994).

45

"[T]o compel severance, the defenses of co-defendants must be more than

merely antagonistic, they `must be antagonistic to the point of being mutually
exclusive.'" United States v. Knowles, 66 F.3d 1146, 1159 (11th Cir., 1995). A
district court should grant a motion for severance only if (1) there exists a
"serious risk that a joint trial would compromise a specific trial right of one of

the defendants," or (2) a joint trial would "prevent the jury from making a
reliable judgment about guilt or innocence." Zafiro v. United States, 506 U.S.
534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Notably, a district court's
limiting instructions "often will suffice to cure any risk of prejudice." Id.
46

At issue is whether the comments made by Valdes's attorney were prejudicial to

the point of compromising the rights of Valdes's co-defendants. Having
reviewed the record, we do not find that the comments were so highly
prejudicial that the district court's instructions to the jury regarding closing
arguments did not cure any prejudice. Further, Alberto Artires, Garcia, and
Mercado have not demonstrated that the defense of Valdes was antagonistic to
the point of being mutually exclusive of their defenses. Considering the
substantial evidence of all of the appellants' involvement in the conspiracy, the
comments did not prevent the jury from making a reliable judgment regarding
guilt or innocence, and Alberto Artires, Garcia, and Mercado did not suffer
compelling prejudice. Thus, we affirm the district court's denial of the motion
for mistrial or severance.

47

D. Jury Instruction for Accessory After the Fact

48

Garcia proposed that the jury be instructed on accessory after the fact because
such an instruction was allegedly supported by the evidence adduced at trial.
Specifically, Garcia requested the following jury instruction:

Accessory after the Fact

49

Whoever, knowing that an offense against the United States has been
committed, receives, relieves, comforts or assists the offender in order to hinder
or prevent his apprehension, trial, or punishment, is an accessory after the fact.

50

If you first find that there is a reasonable doubt as to whether Jose Rolando
Garcia committed the substantive offenses charged in Counts 10 and 11 but you
find beyond a reasonable doubt that Mr. Garcia is an accessory after the fact,
you must find him not guilty of Counts 10 and 11.

51

Garcia argued that the telephone records offered into evidence by the
government showed that Garcia was following the instructions of Reynaldo
Artires to dismantle the grow house. Therefore, Garcia asserted his involvement
in the conspiracy commenced after the completion of the charged crimes. The
government responded that Garcia, in fact, dismantled the grow house to
conceal his own crime.

52

In denying Garcia's request for an accessory after the fact instruction, the
district court stated that the requested instruction would confuse the jury.
Additionally, the district court noted that the instructions for the substantive
offenses correctly described the elements for those crimes, and Garcia could
argue that evidence that he dismantled a grow house did not necessarily prove
that he manufactured or maintained a place for manufacturing marijuana.

53

We review a district court's rejection of a proposed jury instruction for an abuse

of discretion. Starrett, 55 F.3d at 1551. The district court has broad discretion in
formulating jury instructions as long as those instructions are a correct
statement of the law. United States v. Schlei, 122 F.3d 944, 968 (11th
Cir.1997). "The district court's refusal to incorporate a requested jury
instruction will be reversed only if the proffered instruction was substantially
correct, the requested instruction was not addressed in charges actually given,
and failure to give the instruction seriously impaired the defendant's ability to
present an effective defense." Starrett, 55 F.3d at 1551 (citation and internal
quotations omitted).

54

The government does not dispute that the proffered jury instruction was a
substantially correct statement of the law. Although the instructions given to
the jury did not include the requested instruction on accessory after the fact,
Garcia has not demonstrated that the district court's failure to give the requested
instruction seriously impaired Garcia's ability to present an effective defense.
As the district court noted, the omission of the requested instruction did not
prevent Garcia from arguing that evidence that he had dismantled a grow house
did not prove that he had manufactured marijuana or maintained a grow house.
Therefore, we do not find that the district court's omission of this proposed jury
instruction constitutes an abuse of its discretion, and affirm the district court's
denial of Garcia's request.
E. Valdes's Safety-Valve Request

55

Valdes appeals the district court's denial of his safety-valve request pursuant to
U.S.S.G. 5C1.2. We review the district court's application of the federal
sentencing guidelines to uncontroverted facts de novo. United States v. Clavijo,
165 F.3d 1341, 1343 (11th Cir.1999).

56

The safety-valve provision outlines five criteria that, if met, enable the district
court to sentence a defendant without regard to the mandatory minimum
sentences in certain cases. U.S.S.G. 5C1.2; United States v. Brownlee, 204
F.3d 1302, 1304 (11th Cir.2000). It is undisputed that Valdes meets the first

four criteria of the safety-valve provision and that the information he provided
was truthful. Therefore, at issue, is whether Valdes has satisfied the temporal
requirement outlined in U.S.S.G. 5C1.2(a)(5). Sub-section (a)(5) provides, in
part: "not later than the time of the sentencing hearing, the defendant has
truthfully provided to the Government all information and evidence the
defendant has concerning the offense or offenses that were part of the same
course of conduct or of a common scheme or plan." U.S.S.G. 5C1.2(a)(5)
(emphasis added). At sentencing, when it became apparent to Valdes that he
had not completely debriefed to the satisfaction of the government, he moved
for a continuance of the sentencing. The court declined his request for a
continuance, and, ultimately, declined to give him safety-valve relief due to his
failure to completely debrief prior to the commencement of sentencing.
57

The government argues that our language in Brownlee created a rigid

jurisdictional rule that precludes a finding that Valdes satisfied the temporal
requirement in U.S.S.G. 5C1.2(a)(5). In Brownlee, we held that even if a
defendant previously lied or withheld information from the government, the
district court is not later precluded from granting safety-valve relief. Brownlee,
204 F.3d at 1304. We stated that "lies and omissions do not, as a matter of law,
disqualify a defendant from safety-valve relief so long as the defendant makes a
complete and truthful proffer not later than the commencement of the
sentencing hearing." Brownlee, 204 F.3d at 1305 (emphasis added). The
government reads the end of this statement in Brownlee as unequivocally
requiring that the defendant's safety-valve proffer be completed prior to the
commencement of the sentencing hearing. We disagree. Since Brownlee made
his proffer prior to the commencement of his sentencing, the temporal issue
was not before us in that case. Therefore, the temporal language in the latter
part of that statement was not part of the holding, and, as dicta, does not have
the force of law. See McDonald's Corp. v. Robertson, 147 F.3d 1301, 1315
(11th Cir.1998) (Carnes, J., concurring) ("[D]icta in our opinions is not binding
on anyone for any purpose.").

58

Unlike the factual circumstances in Brownlee, in the instant case, Valdes's

opportunity for safety-valve relief hinges upon our interpretation of the
temporal requirement in U.S.S.G. 5C1.2(a)(5). Sub-section (a)(5) specifically
requires that the proffer be made "not later than the time of sentencing."
U.S.S.G. 5C1.2(a)(5) (emphasis added). Notably, this temporal requirement
does not preclude the district court from exercising its discretion to continue a
sentence. See United States v. Madrigal, 327 F.3d 738, 739 (8th Cir.2003). If
the district court finds that the factual circumstances warrant a continuance,
then it may continue the sentencing hearing to give the defendant more time to
fully debrief and give a formal safety-valve statement. Here, the district court

interpreted our language in Brownlee as trumping its discretion to continue the

sentencing hearing to allow Valdes to more fully debrief.
59

"Of course, in the most typical cases the qualification for the safety valve
should come before the commencement of the sentencing hearing in order to
prevent the defendant from misleading the government or manipulating the
sentence." Madrigal, 327 F.3d at 745. Nevertheless, we believe that Valdes's
circumstances warranted a continuance. First, Valdes, a first time drug offender,
does not speak English, and all translation at the initial debriefing was
performed by an agent rather than an independent translator. Second, his
counsel erroneously believed that Valdes had already made a sufficient
statement to qualify for the safety-valve and that he had been assured by the
government agents that they would follow-up with additional debriefings.
Third, and perhaps most importantly, there is no evidence that Valdes's failure
to fully debrief prior to the commencement of the sentencing hearing was an
attempt to mislead, manipulate, stall or delay. Like Madrigal, Valdes's failure to
fully disclose prior to the commencement of the sentencing hearing was due to
a misunderstanding and not in blatant disregard for the requirements of
U.S.S.G. 5C1.2. Therefore, considering the facts of this case, the district
court had good cause to continue Valdes's sentencing.

60

We hold that a district court may continue a sentencing hearing to give a

defendant an opportunity to debrief for the purpose of considering safety-valve
relief, if the district court determines that the factual circumstances warrant a
continuance. In light of this conclusion, we remand to the district court for
consideration of Valdes's safety-valve request.

61

F. Amount of Plants Attributable to Alberto Artires

62

Alberto Artires appeals the district court's factual determination at sentencing

that he was responsible for 312 marijuana plants when the jury specifically
found in a special interrogatory verdict that he was not responsible for more
than 100 marijuana plants. The district court's factual finding was based on
evidence presented at trial and proven to the court's satisfaction by a
preponderance of the evidence at the sentencing.

63

Alberto Artires has adequately preserved this claim. He clearly raised this
Apprendi-type constitutional claim in his objections to the Pre-sentence
Investigation Report and at sentencing. He then raised this constitutional claim
again in his initial brief, and, in his supplemental brief, he specifically
challenged this factual finding by the district court in light of Blakely v.

Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). At no
point has the government argued that either plain error or harmless error review
should apply to this claims. In fact, at oral argument, the government conceded
that if the Supreme Court's decision in Booker was consistent with its Blakely
decision, then Artires's Apprendi-type constitutional arguments are valid.
64

In United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621
(2005), the Supreme Court held that the Sixth Amendment as construed in
Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004),
applies to the federal sentencing guidelines, and, consequently, held that the
federal sentencing guidelines are effectively advisory. This constitutional
holding "means that it is no longer possible to maintain the judicial factfinding
that Congress thought would underpin the mandatory Guidelines system that it
sought to create." Booker, 125 S.Ct. at 757 (Breyer, J.). As in Booker, the
district court in this case "applied the Guidelines as written and imposed a
sentence higher than the maximum authorized solely by the jury's verdict."
Booker, 125 S.Ct. at 769 (Breyer, J.). Therefore, like Booker's sentence,
Alberto Artires' sentence violates the Sixth Amendment. Consistent with the
Supreme Court's remand in Booker, we vacate the judgment of Alberto Artires
and remand for resentencing. See, e.g., United States v. Reese, 397 F.3d 1337,
1338 (11th Cir.2005) (remanding a preserved error in light of Booker).

IV. CONCLUSION
65

We affirm the district court's judgment in all respects except the denial of
Valdes's safety-valve request and the calculation of Alberto Artires's sentence.
Therefore, we vacate the judgments of Valdes and Alberto Artires and remand
for resentencing consistent with this opinion.

66

AFFIRMED in part, and VACATED and REMANDED in part.

Notes:
*

Honorable Jane A. Restani, Chief Judge, United States Court of International

Trade, sitting by designation

The jury acquitted both Garcia and Mercado of charges that they knowingly
and intentionally manufactured marijuana, acquitted Mercado of a charge that
he knowingly maintained a place for the purpose of manufacturing marijuana,
and acquitted Julio Artires on all charges against him. Additionally, the jury
found co-defendant Felipe Suarez guilty on all counts charged against him.

However, Suarez did not appeal either his conviction or his sentence
2

All other issues raised on appeal do not merit further discussion and are
summarily rejected

The cultivation of marijuana requires a very controlled environment. Marijuana

grow houses are sealed both to conceal the illegal activity and to keep out the
natural light. High-wattage fluorescent lights are used to focus artificial light on
the plants and Mylar film is attached to the walls to stimulate growth and
allegedly minimize detection by infra-red detection devices. Because the
artificial light emits large quantities of heat, grow houses are typically equipped
with a venting system including exhaust fans and large air conditioning units
Young marijuana plants are first grown in plastic starter trays before they are
transplanted to a material called "rock wool" and placed in large buckets with
ceramic rocks called "grow rocks." Together, the rock wool and grow rocks act
as a soil substitute. Water and fertilizer are pumped through PVC pipes into
holes drilled in the buckets. To harvest the marijuana narcotic, the leaves and
stems on the plants are clipped away and the collases, large masses of buds
covered with a sticky resin, are hung to dry.

Suarez was listed as the subscriber on the electric records for 8504 Sheraton
Drive from October 12, 1999 through December 15, 2000

The jury acquitted co-defendant Julio Artires. Co-defendant Suarez was found
guilty on all counts charged against him, but did not appeal his conviction or
sentence

The jury acquitted Garcia of the charges in Count 10, acquitted Mercado of the
charges in Counts 18 and 19, and acquitted Julio Artires on all counts. Suarez
was found guilty on all counts charging him, but is not a party to this appeal

Although Alberto Artires did not explicitly challenge the sufficiency of the
evidence in his brief, he adopted by reference the relevant portions of his coappellants' briefs pursuant to Rule 28(i) of the Federal Rules of Appellate
Procedure. Because the other three appellants challenged their conspiracy
convictions, we have also addressed whether there was sufficient evidence for
the jury to convict Alberto Artires of conspiracy

Alberto Artires was also convicted of knowingly manufacturing marijuana. He

did not raise a sufficiency of evidence claim as to this conviction on appeal.
Had he raised such a claim, we would have rejected it

Again, Alberto Artires did not raise a sufficiency of the evidence claim as to his

conviction for knowingly maintaining a place for the purpose of manufacturing

marijuana. We would have also rejected such a claim if he had raised that
argument on appeal
10

At trial, Julio Artires moved the court for a mistrial or, in the alternative, a
severance, and Garcia, Mercado, Alberto Artires, and Suarez joined in the
motion